Medical Malpractice; Battery; Whether the Trial Court Should have Admitted Evidence
of Standard of Care as it Related to Defendant's Medical Record Keeping; Whether
Patient Pamphlet was Properly Barred in Connection with Challenge to
Defendant's Credibility; Whether the Court should have Set Aside the Defendants'
Verdicts as being Unsupported by the Evidence. The plaintiff, who was experiencing low
back pain, saw F. Scott Gray, an orthopedic surgeon, for treatment. He
underwent a magnetic resonance imaging (MRI) scan, which revealed a "large
left posterolateral disc protrusion at [the] L4-L5" level of the spine.
After discussing the MRI results with the plaintiff, Gray wrote in an office
note that the MRI showed a left sided herniation, "probably in part free
fragment." The plaintiff agreed to undergo a microdiscectomy using the
METRx retractor system, which permits disc repair surgery to be done through a
small incision. Subsequently, Gray submitted a history and physical
examination form to the hospital that described the plaintiff's complaint as low
back pain with right leg discomfort and a right sided herniation. Before
surgery, the plaintiff signed a form consenting to a "left L4-L5
microdiscectomy." Gray performed surgery on the right side of the
plaintiff's back and, in the postoperative report, again referred to right
sided herniation. Following surgery, the plaintiff's back pain continued and
he underwent two additional back surgeries. Subsequently, the plaintiff sued Gray
and his office practice. He alleged that Gray negligently operated on the
wrong side of his back and committed a battery since the plaintiff had
consented to surgery on his left side. At trial, the plaintiff's expert
testified that Gray had performed a right sided microdiscectomy. Gray,
however, testified that although he made some erroneous record entries, he
intentionally performed a left microdiscectomy via a right sided approach
because this procedure is safer when using the METRx retractor system. The
defendants' expert testified that Gray acted within the standard of care by
taking the right sided approach in this case, although he stated that if Gray
had suspected a free fragment, then the standard of care would have required him
to take a left sided approach to address the left sided herniation. As to the
free fragment, Gray testified that although he initially thought there was one,
he changed his mind after speaking with a radiologist. Also, the plaintiff
asked Gray questions about the availability of a patient pamphlet describing
the METRx procedure and whether he gave any such pamphlets to patients
undergoing a microdiscectomy. The trial court refused to allow the plaintiff
to admit one of the pamphlets into evidence to attack Gray's credibility. Also,
the court precluded the plaintiff from asking Gray or his expert about the
standard of care regarding the creation and keeping of medical records. At the
end of the trial, the jury found for the defendants, and the court refused to
set aside the verdict. On appeal, the plaintiff, in addition to challenging
the foregoing evidentiary rulings, contends that the court improperly refused
to set aside the verdict on the battery count. He asserts that the defendants'
expert testified that Gray did not "technically" perform a left
microdiscectomy and, hence, the verdict was contrary to the evidence. Further,
he claims that the court should have set aside the verdict on the negligence
count because the jury could not have reasonably concluded that Gray's undocumented
conversation with an unidentified radiologist would have altered his thinking
about the presence of a free fragment, and the jury should have found,
therefore, that Gray breached the standard of care in taking a right sided
approach.